Siman 257

There is a gift of a healthy person that is like a gift of one who is terminally ill, in that the primary acquisition is after the death of the giver. For example, one who writes over his property to his son or to another person "from today and after death," the intention is that the recipient shall acquire the body of the property from today and the fruit after death, and until his death the giver shall consume the fruit. Therefore, the giver cannot sell because they belong to the recipient, and the recipient cannot sell because the fruit is in the domain of the giver all the days of his life. And this is certainly so if he wrote explicitly thus: that he transfers to him the body from today and the fruit after death. And even though one cannot reserve something that has not yet come into the world, and how then did he reserve for himself the fruit? However, it has already been explained in siman 209 that for himself he also reserved the place of the fruit, and therefore he can even sell them, as will be explained, because the place of the fruit exists in the world.

If the giver transgressed and sold the properties, they are sold until he dies, and the buyer consumes the fruit all the days of the giver's life; and when he dies, the recipient or his heirs remove them from the hand of the buyers, and even if he died during the lifetime of the giver, because the body belongs to the recipient from the time of the gift. And if the recipient transgressed and sold the properties, the buyer has nothing until the giver dies, and when he dies, he takes the properties, for the sale of the recipient is a complete sale. And even if the recipient sold during the lifetime of the giver, and the recipient died and afterwards the giver died, the buyer has acquired them, for the giver had nothing but fruit, and acquisition of fruit is not like acquisition of the body, and the body belongs to the recipient and his sale is a sale. And know that that which we wrote, "transgressed and sold," regarding both of them, which implies that ab initio they should not sell, this is the wording of the Rambam in chapter 12 of Zechiyah and the Shulchan Aruch. And it appears to me that this is when they sell without specification, but when the giver explicitly sells only the fruit, and likewise the recipient sells the body and not the fruit, they may sell ab initio. And if one of them sold without specification, which implies the body and the fruit, and afterwards the buyer became aware that he has nothing but fruit or the body, he has the power to cancel the sale, for you have no greater mistaken transaction than this. But if the buyer knew that this one selling to him has nothing but fruit or the body, he cannot cancel the sale even though he sold to him without specification [Nimukei Yosef at the end of chapter 8 of Bava Batra]. And that which has been explained, that when the giver sold he sold nothing but the fruit, if even afterwards he went back and took the body from the hand of the recipient or the recipient died and he is his heir, nevertheless he only acquired the fruit, since at the time the giver sold to him, the body was not his. And likewise the recipient who sold, even if he afterwards acquired the fruit as well from the giver, nevertheless he did not acquire the fruit, for at the time he sold, the fruit did not belong to the recipient, and what he acquired afterwards is not sold by the previous sale.

If the giver died and left produce detached from the ground, or even attached but the time for them to be detached has arrived, they belong to the heirs of the giver, for they are considered as if detached. And some say that since they are attached, even if the time for them to be detached has arrived, they are considered as attached regarding his son, as will be explained [Shach].

If one left attached produce that still requires the ground, if the recipient is not his son, they belong to the giver. Even though that which is attached to the ground is considered like the ground, nevertheless, we estimate his intent that he did not wish to give anything but the properties without the produce, even when they are attached to the ground as they were at the time of his giving [ibid.]. But when the recipient is his son, they belong to his son, because a person's mind is close to his son. And according to the "some say" in section 3, regarding a son, it belongs to the son even if the time for them to be detached has arrived; and if the time for them to be detached has not arrived, even regarding another, it is like actual ground and they belong to the recipient [ibid.]. And his daughter is like his son, and his brother is like another, and regarding a father there is a doubt. And if he wrote it to his grandson, he is like his son regarding this matter; and even though regarding one who grants to a fetus we do not say that a grandson is like a son, as I wrote in siman 210, nevertheless in this case where he certainly acquired the body of the ground, we say that he also transferred the attached produce to him [it appears to me]. And if the son sold his right to another, the buyer does not have the power of the son and is like another; and so we estimate the intent of the giver, that when the son sells to another, he shall not acquire the attached produce and they belong to the heirs of the father. And if the buyer wishes to receive the produce, he shall pay the heirs according to their value at the time the father died, or if he wishes, he leaves them in the ground until they are finished according to the first opinion that even those requiring the ground belong to the giver and he gives them to the heirs, and he does not need to pay him for what was in his field until they were finished [Sma], since he was able to receive them and pay according to their value. And similarly, if the father sold the produce to another, the law of the other is not like the law of the father, and the attached produce that is there at the time of his death which requires the ground, they appraise them for what they are worth now and the son gives their value to the buyer. And if they were detached or reached the stage to be detached, they belong to the buyer, for even though a person's mind is close to his son and he waives the attached produce to him as I wrote, however, the one who buys from him does not waive, and it is not within the power of the father to diminish the power of the recipient. And according to the "some say," regarding produce requiring the ground, it belongs to the son, for even regarding another it would be his. And some say that the law of the son with the buyer is like with the father, for the father only sold him the right that he had in it, and so it appears primary [the Gra].

The general rule of the matter is that a gift of a healthy person in which it is written "from today and after death" is like a gift of a shekhiv mera, which only effects acquisition after death. And there is a gift of a healthy person that is entirely like a gift of a shekhiv mera, in that he may retract it all the days of his life even regarding the principal. How so? A healthy person who wrote a gift "from today if I do not retract until after death," for since he gave with this condition, he may retract all the days of his life. And all the laws of conditions do not apply to this, because he gave it to him in this manner so that it should be like a gift of a shekhiv mera. Nevertheless, it requires a kinyan since it is a gift of a healthy person, and when he dies and has not retracted, he acquires from the time of the gift. Therefore, it requires a kinyan, for it is not exactly like a gift of a shekhiv mera where the kinyan is after death, but rather only that he may retract; however, when he has not retracted, he acquires from before. Therefore, it is not relevant to say that "his words are as if written and delivered," for they only said this regarding a shekhiv mera and not regarding a healthy person.

Therefore, a healthy person who wishes to divide his assets after his death so that his heirs will not quarrel, and wishes to make a will while he is healthy, has no remedy by merely writing a simple will, for his words are not considered as if they were written and delivered. Rather, he must transfer ownership to them with a complete kinyan, and he should write in the will that he transferred ownership to them with a kinyan. Regarding money, for which kinyan sudar is not effective, he should transfer ownership to them via agav karkah. And if his desire is to consume the fruit all the days of his life, he should write "from today and after death." And if his desire is that it should be within his power to retract during all the days of his life, he should write "from today if I do not retract until the day of death." And know that a kinyan is only effective for assets that are in his possession and have come into the world. But if he wishes to give them something that is not in his possession or has not come into the world, which cannot be acquired through any kinyan, it is only effective if he admits by way of hoda'ah that he owes this one such-and-such and that one such-and-such, for there is nothing in the world for which hoda'ah is not effective. And see what I wrote in siman 60.

A healthy person who wrote all his properties to his sons, according to the law, he and his wife are not sustained from them. Nevertheless, it is proper for the beit din to compel them with words to act beyond the letter of the law and sustain them [Ketubot 50a]. And if he explicitly reserved maintenance, they hire a servant for him or marry a woman to him so she may serve him, for everything is included in maintenance [Beit Yosef]. And one who writes his properties to his sons and stipulated to dwell in them all the days of his life and to be sustained from them when he will be in need of this, he may dwell in them with his wife and the servants necessary for him. And likewise, they give him maintenance if he does not have it from another place, and the maintenance shall be given to him according to his status, and his wife is also sustained, and likewise the servant that he needs is also sustained. And if it is necessary to pay wages to the servant, they pay from the properties; and also clothing and shoes and all his needs are included in the maintenance [it appears to me]. And if they sold for the sake of his maintenance and his other needs, and money came to him afterward, he does not need to pay back what he took, for he took what was his according to the condition; and see Yoreh Deah siman 253. And he may sell and give this right of his to another, provided that the other will not require more than him [ibid.].

One who writes all of his property to his son or to another from today and after death, and they include movable property or debts, he must sell them and purchase land with their proceeds and consume the fruit from them according to the law of a husband regarding his wife's property, so that the principal is not lost, unless he stipulated to do with his property all the days of his life whatever he desires.

Regarding that which has been explained, that when one writes "from today and after death" the intention is the body of the property from today and the fruits after death, one should not ask why regarding a get, when one says "from today and after death," it is a matter of doubt or a condition—whether it is "from today if I do not retract until I die," or if he retracted what he said "from today," and there is no get after death, as is written in Even HaEzer siman 145. For certainly it is so regarding a gift, where we are able to fulfill both regarding the body and the fruits, we do not interpret it as a condition nor as a retraction. But regarding a get, where body and fruits are not applicable, it is necessary to interpret it as a condition or a retraction. Therefore, our teacher, the Rema, ruled regarding one who consecrates land "from today and after his death" or "from today and after thirty days," it is not consecrated at all; for it is impossible to say the body is from today and the fruits are after a time, for if so, the fruits would draw sustenance from a field of hekdesh. Perforce, one must interpret it as a condition or a retraction, and we establish the land in its presumptive status, for he intended to retract what he said "from today," and there is no hekdesh after death. And regarding "from today and after thirty days," he can also retract within the thirty days; but if he did not retract, it is hekdesh regardless, for even if he retracted and consecrated it after thirty days, it is also consecrated. All of this applies to hekdesh during the time of the Temple, but in this current time their law is like that of a commoner, as is written in siman 95. Therefore, regarding one who consecrated, or declared hefker, or gave to the poor with the language "from today and after death," the body belongs from today and the fruits after death, just as with a commoner [Acharonim]. However, in the Yerushalmi, chapter 7 of Gittin, it is explained that hefker is similar to a get, for it is impossible for the field to be hefker while the fruits belong to the owner [and so wrote the Rashba]. And it likewise implies there that regarding hekdesh after thirty days, he cannot retract; and similarly, one who says "this sela is for tzedakah after thirty days" cannot retract [Ran, chapter 3 of Nedarim].